Professor Demleitner on Alito’s Immigration Record

by Roger Alford

On the final day of the Alito hearings, Julian Ku’s colleague Professor Nora Demleitner at Hofstra School of Law testified on Judge Alito’s immigration record. Demleitner was a clerk for Judge Alito and part of her testimony focused on one aspect of his immigration jurisprudence that has been ignored in my previous posts: gender as a basis for asylum law.

DEMLEITNER: Since the very early days of my clerkship, I must admit that Judge Alito has really become my role model. I do think that he is one of the most brilliant legal minds of our generation — or of his generation — and he’s a man of great decency, integrity and character. I say all of this as what I would consider to be a left-leaning Democrat, a woman, obviously, a member of the ACLU and an immigrant. And my view is not one that is unique with regard to people who have worked with him, or with regard to people who have worked for Judge Alito. All of his clerks, many of whom are politically liberal, have signed on to a letter strongly urging the Senate to confirm Judge Alito as Associate Justice. A number of non-Republican legal academics who have worked with or for Judge Alito have also issued an equally forceful statement on his behalf.

Let me explain to you why I believe that Samuel Alito deserves to sit on the highest court and why his confirmation will, in fact, not pose a threat to the rights of women, to the rights of minorities, immigrants or other vulnerable groups. Judge Alito does not have a political agenda. He gives very careful consideration to the lower court record and to prior judicial decisions.

Let me point you to two cases that may explain the judge’s philosophy. While I clerked for him, he had to decide the case of Parastoo Fatin. Ms. Fatin had left Iran in order, in part, to be escaping the regime of Ayatollah Khomeini. She applied for asylum in the United States, but was denied by the immigration court and by the Board of Immigration Appeals. Without revealing any confidences, I can tell you that Judge Alito was very much moved by the personal tragedy of the situation and the moral dilemma Ms. Fatin would face. If returned to Iran, she would either be unable to speak her deep feminist convictions, or the Iranian regime would penalize her. The problem with her case was that there was really an absence of favorable case law and, even worse, a very thin record, that indicated only very limited opposition on her part to the Iranian regime. The judge did not see himself in a position to help Ms. Fatin, who was, however, ultimately permitted to stay in the United States. He, however, did take this opportunity to write one of the most progressive opinions on gender-based asylum law.

The case she was referring to is Fatin v. INS, 12 F.3d 1233 (3rd Cir. 1993). The import of Judge Alito’s groundbreaking decision is that a person who holds strong feminist views can be a basis for an asylum application. Essentially, Fatin won on creating new law, but lost on the facts as applied to her.

I have not been able to find a full copy of the opinion on the Internet (let me know if you find one), but here is a key section of the opinion:

The petitioner’s primary argument, in any event, is not that she faces persecution simply because she is a woman. Rather, she maintains that she faces persecution because she is a member of “a very visible and specific subgroup: Iranian women who refuse to conform to the government’s gender-specific laws and social norms.” Petitioner’s Br. at 12 (emphasis added). This definition merits close consideration. It does not include all Iranian women who hold feminist views. Nor does it include all Iranian women who find the Iranian government’s “gender-specific laws and repressive social norms” objectionable or offensive. Instead, it is limited to those Iranian women who find those laws so abhorrent that they “refuse to conform”-even though, according to the petitioner’s brief, “the routine penalty” for noncompliance is “74 lashes, a year’s imprisonment, and in many cases brutal rapes and death.” Limited in this way, the “particular social group” identified by the petitioner may well satisfy the BIA’s definition of that concept, for if a woman’s opposition to the Iranian laws in question is so profound that she would choose to suffer the severe consequences of noncompliance, her beliefs may well be characterized as “so fundamental to [her] identity or conscience that [they] ought not be required to be changed.” … The petitioner’s difficulty, however, is that the administrative record does not establish that she is a member of this tightly defined group, for there is no evidence in that record showing that her opposition to the Iranian laws at issue is of the depth and importance required.

If Julian could persuade Professor Demleitner to provide more details regarding the importance of the Fatin decision, I would be most interested in posting it.

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